United States District Court, D. New Jersey
E. THOMPSON, U.S.D.J.
matter comes before the Court upon the Appeal by Lynn Z.
Smith (“Appellant”) of an Order entered by the
United States Bankruptcy Court for the District of New Jersey
on October 3, 2018 that denied a Motion to Compel
Discovery. (U.S.B.C. Docket No. 17-34862, ECF No.
292.) Creditor New Jersey Bureau of Securities (the
“Bureau”) opposes. (ECF No. 15.) The Court has
decided this matter upon the parties' written submissions
and without oral argument. For the reasons set forth below,
Appellant's Appeal is denied.
is the debtor in an ongoing bankruptcy proceeding. The Bureau
has a $809, 237 claim against Appellant, based on a final
judgment entered against her in New Jersey state court in
2009. (See Bureau Br. at 3, ECF No. 15.) Appellant challenges
the validity of this claim. (Mot. at 2, U.S.B.C. Docket No.
17-34862, ECF No. 219.) On August 8, 2018, Appellant filed a
Motion asking the Bankruptcy Court to order the Bureau
“to list all the facts that their $800, 000 [sic] fine
was based on.” (Id.) The Bankruptcy Court
denied the Motion on October 3, 2018. (U.S.B.C. Docket No.
17-34862, ECF No. 292.)
October 15, 2018, Appellant filed the present Appeal
challenging the Bankruptcy Court's Order. Appellant filed
her Brief on January 22, 2019. (ECF No. 12.) The Bureau filed
an opposing Brief on February 21, 2019. (ECF No.
No. reply brief was filed. (See Letter Order, ECF No. 16
(setting the reply deadline for March 18, 2019).) The Appeal
is presently before the Court.
Court lacks jurisdiction to hear this interlocutory Appeal,
so the Appeal is dismissed. 28 U.S.C. § 158(a) grants
district courts jurisdiction to hear appeals “(1) from
final judgments, orders, and decrees; (2) from interlocutory
orders and decrees issued [modifying the time periods to
submit a plan of reorganization, 11 U.S.C. § 1121]; and
(3) with leave of the court, from other interlocutory orders
and decrees.” The Bankruptcy Court Order on appeal here
denied Appellant's request to require a creditor to
submit additional information. (See Mot. at 2.) The Order
thus concerned discovery, defined as “[c]ompulsory
disclosure, at a party's request, of information that
relates to the litigation.” Discovery, Black's Law
Dictionary (10th ed. 2014).
orders are not “final judgments, orders, and
decrees” under 28 U.S.C. § 158(a)(1). Cf. Henry v.
St. Croix Alumina, LLC, 416 Fed.Appx. 204, 208 (3d Cir. 2011)
(stating that “[d]iscovery orders are not final
decisions within the meaning of 28 U.S.C. § 1291”
(quoting Adapt of Phila. v. Phila. Hous. Auth., 433 F.3d 353,
360 (3d Cir. 2006))).
an interlocutory appeal may be heard “with leave of the
court” under § 158(a)(3), the Court will not grant
leave in this case. Following the reasoning of 28 U.S.C.
§ 1292(b)-the statute addressing interlocutory appeals
before a circuit court, see Hon. William L. Norton, Jr. et
al., Norton Bankruptcy Law & Practice § 170:14 (3d
ed., Oct. 2018 update) (stating that § 1292(b) provides
guidance for bankruptcy cases)-an interlocutory appeal may be
heard when “[the underlying] order involves a
controlling question of law as to which there is substantial
ground for difference of opinion and . . . an immediate
appeal from the order may materially advance the ultimate
termination of the litigation.” 28 U.S.C. §
1292(b). Those circumstances do not exist here. In
particular, hearing this interlocutory order will not
materially advance the ultimate termination of the
litigation: Even if the Court were to hear the Appeal, and
even if the Court were to require the Bureau to provide the
discovery sought, the Bankruptcy Court still could not vacate
the $809, 237 final judgment because this Court and the Third
Circuit have already held that it lacks the power to do so.
Smith v. Manasquan Bank, 2018 U.S. Dist. LEXIS 135395, at
*9-10 (D.N.J. Aug. 9, 2018), aff'd In re Smith, 2018 U.S.
App. LEXIS 35285, at *7 n.7 (3d Cir. Dec. 17,
2018). In sum, no provision of 28 U.S.C. §
158(a) provides the Court jurisdiction to hear this Appeal.
foregoing reasons, Appellant's Appeal is denied. An
appropriate Order will follow.